Mpofu v Sibanda and Ors (HC 2464 of 2003) [2004] ZWBHC 94 (30 June 2004)

Judgment No. HB 94/2004 Case No. HC 2464/03 JESTER MPOFU Versus SELINA SIBANDA AND 2 OTHERS IN THE HIGH COURT OF ZIMBABWE CHEDA J BULAWAYO 28 NOVEMBER 2003 & 1 JULY 2004 Applicant in person Respondent in person Chamber Application CHEDA J: Applicant is a self actor filed an urgent application on 11 November 2003 seeking to prevent 1st respondent from transferring property to a third party before their dispute is settled. On or about 10 June 2002 applicant entered into an agreement of sale with 1st respondent wherein she bought stand B65 Njube Township from 1st respondent. The purchase price was $780 000. Applicant made the following payment through an estate agent who drafted the agreement of sale: 1. 2. 3. $400 000 $300 000 $80 000 - - - 11 June 2002 4 July 2002 1 October 2002 One of the terms of the agreement under transfer reads – “Transfer of the property to the purchaser shall be done upon full payment of the purchase price by the purchaser. The transfer of the property shall be done by the Bulawayo City Council/selected lawyers.” When the matter was placed before me on 11 November 2003 I ordered that all the 3 respondents be served and the matter be set down for hearing on 24 November 2003. On 24 November 2003 applicant and 1st respondent appeared in court but other respondents had not been served. I then ordered that all respondents HB 94/04 be served and the matter set down for hearing on 28 November 2003. On 28 November 2003 applicant and 1st respondent appeared in court. It was applicant’s argument that she saw an advertisement in the newspaper, wherin a house for sale was being advertised by Universal Properties. She reacted to the advertisement and was advised to see 1st respondent at B 65 Njube, Bulawayo. After seeing her, they both went to Pioneer House, where Universal Properties are situated. An agreement of sale was drawn up by Universal Properties and she paid a deposit of $400 000 and subsequent two instalments. She then sought to take transfer from 1st respondent. First respondent was however, now unwilling to do so as she stated that she had not received the purchase price from Universal Properties. First respondent argued that she can not transfer this property to applicant when the agent has not paid her the purchase price. It was further her argument that she sought to cancel the agreement of sale because applicant had breached the agreement of sale by failing to pay timeously. It is common cause that 1st respondent placed her house for sale through Universal Properties (Pvt) Ltd. First respondent was a principal in this matter and she apparently appointed Universal Properties (Pvt) Ltd as her agent by firstly giving them a mandate to advertise her house for sale and secondly by allowing them to draft the agreement of sale. Applicant is a third party in the legal relationship which was created by 1st respondent. It is clear that 1st respondent expressly contracted Universal Properties to secure a purchaser for her and subsequently drew up an agreement of sale. This was her agent. It is her contention that her agent did not thereafter pay her the purchase price. The agreement is silent as to who the purchase price should be paid to. It is HB 94/04 however, my opinion that the fact that the agreement, though silent as to who should receive the purchase price, but that the agreement was drawn up by the agent who was appointed by the seller and the purchaser paid the purchase price to the agent which payment was accepted by them, applicant is therefore entitled to conclude that she has discharged her obligation towards the seller. It is my view that the essential facts of this case create the mandate for the agent to receive payment from the purchaser. This inference is as a result of both applicant’s and respondent’s conduct in relation to the agreement which was signed by them at the agent’s offices. Respondent is aware that applicant paid the purchase price to the agent. She should therefore look up to her agent for the purchase price. This application accordingly succeeds. Accordingly the following order is made: 1. That first respondent be and is hereby ordered to sign the relevant papers to effect cession of house number B 65 Njube Township, situate in the District of Bulawayo to applicant within 10 days of this order. 2. In the event that first respondent fails to do as ordered, the Deputy Sheriff be and is hereby ordered to sign those papers on her behalf. 3. First respondent to pay costs of this application on the ordinary scale.